Considerations that should be taken into account by Managers in carrying out their discharge function

Summary of key points

An NHS Trust can seek a judicial review of a decision by a panel of its own Hospital Managers, even though the Managers are defined under the Mental Health Act as the Trust

Failure to take account of a relevant consideration by a panel may in some circumstances render a decision unlawful, but in the case of 'permissive considerations', that is, those where the decision-maker may choose whether to take them into account, the failure to do so will only make the decision unlawful if no rational decision-maker would have ignored the consideration.

Facts, issues and key findings in the case

This case does not set a new precedent, but is an interesting example of how the Hospital Managers review regime can and should operate.

AU had a long history of treatment from mental health services for personality disorder and bipolar affective disorder. In March 2016 a Tribunal decided that he should continue to be detained in hospital. The evidence from the clinical team and experts at the hearing was that he presented a serious, potentially fatal, risk to his parents, he had not shown any willingness to engage with therapeutic activities but needed extensive psychological work, he had a history of failing to take medication but it was difficult to be clear whether his violent behaviour arose when he was ill.

A month later, a panel of Hospital Managers considered his case and decided to discharge him. The panel was aware of the Tribunal decision, although not all members had read it. They had read the expert report given to the Tribunal and heard evidence from the clinical team.

The main challenge to the panel's decision was that they failed to take proper account of the Tribunal decision. The panel's written decision made no reference to some of the key findings made by the Tribunal and did not demonstrate any understanding of the relevance of personality disorder, highlighted in the expert report.

The Judge noted the background framework that Managers were required to consider, in particular, the Mental Health Act, and chapter 38 of the Code of Practice. He made the simple point that there is no express legal requirement to consider an earlier Tribunal decision. In addition, he noted:

"The Parliamentary intention providing various avenues to patients to regain their liberty means that it is up to these separate decision-makers to decide whether or not to take into account a decision of another and, if so, how much weight to give to it "

Commentary

This case reaffirms the considerable independence which is to be afforded to and expected of Hospital Managers, as a key safeguard for patients who are detained in hospital.

One additional practical lesson from this case arises from the common law requirement on the panel to give reasons for its decision. Here the panel provided statements to the court to justify the decision to discharge, as an additional explanation of the original reasoning. The Court was invited to disregard the statements on the grounds that the requirement to give adequate reasons was itself a precondition to the legality of the decision. The Court was quick to reject this argument, but it did make the point that such late evidence should be treated with caution. As it happened, the legal challenge was successfully resisted by the panel, but it highlights the need for panel members to consider and write down their reasons carefully.

Dec 11 2018

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The information on this website is of general interest about current legal issues and is not intended to apply to specific circumstances. It should not, therefore, be regarded as constituting legal advice.